Sunday, 27 October 2013

One might think that it is a straightforward thing to get
your birth certificate changed in Queensland and NSW from an M to an F or an F
to an M. Well it might be, but generally forget it if you were born in NSW and
live overseas, and for most, forget it if you are married.

For those adults seeking to change their sex on their birth
records, there are subtle differences between NSW and Queensland. In both
states, the person must be unmarried (although in Queensland this may not apply
to those married overseas), have had “sexual reassignment surgery” (Qld) or a “sex
affirmation procedure” (NSW) and fill out a form with statutory declarations by
two doctors to verify that.

In NSW the doctors must be Australian doctors. In
Queensland, the doctors can be from some overseas countries.

NSW has two further requirements that Queensland does not
have. NSW requires the person seeking the change to have lived in NSW for the
previous year and they must be either an Australian citizen or a permanent
resident of Australia.

Some years ago I obtained a ruling from then Queensland Attorney-General
Rod Welford that the requirement under the Queensland legislation did not apply
to those living overseas who married overseas. My client who fit both criteria was able to
get her birth record changed form an M to an F. Whether this ruling still
applies is not known.

Thursday, 24 October 2013

This week we have seen the enactment in the ACT of its equality marriage laws. It is expected that the laws will take effect in 2 weeks, meaning that same sex couples can get married there in 6 weeks, as there is a requirement to give 4 weeks notice before getting hitched.

With absolute predictability, the Abbott government will challenge the laws in the High Court. What is uncertain is whether the laws will survive the challenge in the High Court, as I have blogged before. There has been a lot of speculation in the media, as long ago, in respect of mooted Tasmanian laws on this point, as 2008. The reality is that we don't know. It will be up to the seven members of that court to decide. I thought the position was summed up well by one academic, who said: 50/50.

Commonwealth Attorney-General George Brandis is seeking that the High Court deal with the matter urgently. He will no doubt be concerned that delays might not prevent the inevitable (at least in a political sense): the longer that it might take the High Court to decide as to the laws, the potential for more and more people to get married. It is then a bad look for any politician to be removing the rights of hundreds of people who that they had engaged in a valid marriage.

We saw that happen in California.

If for some reason the challenge does not get up, then the Abbott government still has a political fix. If it can persuade the Senate after Clive Palmer controls it in July to pass legislation to override the ACT's laws- then voila!- the laws can be overcome.

Wednesday, 16 October 2013

Since the invention of Austlii, it can be very hard to keep abreast of all the recent family law cases. I am thankful to Anthony Brien of Gay Dads NSW for alerting me to this case.

In Carlton and Bissett, Mr Bissett was both a South African and Israeli citizen. He pursued an altruistic surrogacy in South Africa, where it is legal. A surrogacy arrangement was signed and a South African judge then made an order which meant that when the children were born that Mr Bissett was the sole parent of the children, the surrogate relinquishing her rights.

Following the order being made, medical treatment started and the children were then conceived.

During the course of the pregnancy, Mr Carlton, an Australian resident but originally from South Africa, happened to be visiting South Africa, when he met Mr Bissett. They fell in love and became an item.

Justice Ryan held that the question of whether Mr Bissett was a parent was:

Simply put, whether he is the children’s parent is to be determined in the first instance by the application of the laws where he was ordinarily resident and the children’s domicile (of origin) at the time of their birth; namely South Africa.

Her Honour then said that under South African law Mr Bissett was the parent.

After examining the labyrinth under the Family Law Act as to whether Mr Bissett was a parent, her Honour made a declaration of parentage in favour of Mr Bissett:

It will be apparent that I have accepted that Mr Bissett is able to rely on the general presumptions of parentage notwithstanding the provisions of s 60H [donation to a couple] and s 60HB[ State based parentage orders] , both of which were inserted into the Act after the general presumptions. Those provisions are not directed to children born in another country to a person or people ordinarily resident in that country at the time of conception and birth. (emphasis added)

It will be interesting to see how expatriate Australians may be able to take advantage of what her Honour said.

Registration of overseas orders

It is possible to register with the Family Court overseas custody orders made in specified jurisdictions so that they have the same force and effect as if they had been made under the Family Law Act.

Her Honour rejected the possibility of registration because South Africa was not a prescribed overseas jurisdiction. What she did not do was to reject the possibility of registration on the basis that the Family Court could not make a surrogacy order i.e. the view that the only orders that could be registered were like for like. Her Honour was silent on this point.

I mention this because in the past Family Court registrars have rejected overseas surrogacy orders from prescribed jurisdictions- as I wrote about in my initial submissions to the Family Law Council- because they were not like for like- as the Family Court could not make a surrogacy order, therefore it could not register an overseas surrogacy order.

In light of her Honur's silence on the point, it may now be possible to register those overseas orders, such as from California.

Recently I was asked by Rodney Cruise, convenor of Gay Dads Australia, to write about the case again.

The case is called Groth and Banks. Justice Cronin said that the sperm donor was the legal father of the child when the recipient was the genetic single mother.

The case emphasises three things:

The rules regarding who is or is not a parent are remarkably arcane, and seem to be changing. Those who thought the sperm donor was not a parent but now may be a parent- whether they like it or not.

Honesty between the couple was essential- but lacking in several respects.

Stated intention was trumped by genetics.

The facts

Mr Groth and Ms Banks had been in a relationship. They split up.

Sometime after they split up, Ms Banks asked Mr Groth to supply sperm so that she could become a mother. Mr Groth agreed. They went to an IVF clinic in Melbourne. They told the clinic they were a couple. They weren't. Mr Banks signed a consent form to say that he did not intend to be a parent, but was a donor. The form was provided by the clinic in accordance with Victorian law.

After his partner saw some messages and then questioned Mr Groth did it tumble out as to what he had done. He then asked the Family Court to find that he was a father.

The decision

Justice Cronin determined as a matter of statutory drafting that the Family Law Act envisages that there are two biological parents of a child and that unless there is a displacement under the Family Law Act a sperm donor can be a parent.His Honour determined that a known sperm donor to a single woman was a parent; section 60H of the Family Law Act not applying.

His Honour was of the view that the provisions of the Family Law Act overrode the relevant Victorian legislation that declared that the sperm donor was not a parent.Therefore his Honour did not consider the consent form signed by the sperm donor in which he acknowledged that he was only a donor and not a parent.

This decision has sent a shockwave through IVF clinics as it clearly states that known donors in certain circumstances are no longer donors but are parents and that as a result may have rights and responsibilities under the Family Law Act, have a liability to pay child support and their child may have a right of inheritance.

His Honour stated:

“In Re Mark: An Application Relating to Parental Responsibilities[2003] FamCA 822; (2003) 179 FLR 248; (2003) 31 Fam LR 162; (2003) FLC 93-173, Brown J considered the differing positions of a sperm donor who was unknown or anonymous, and a donor who had entered the process with the intention of fathering a particular child. Her Honour held that a person in the latter position was rightly considered a “parent” for the purposes of the Act. If this were not the case, there would be no need for legislation such as the Status of Children Act 1974(Vic) to remove the rights and responsibilities that might otherwise attach to anonymous or unknown donors.

Brown J reproduced the Oxford English Dictionary definition of a parent, being “a person who has begotten or borne a child”, which was also relied upon in Tobin. In Re Mark,the man had donated his genetic material with the express intention of fathering a child he would parent. Moreover, her Honour found at [59],

[t]he fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of [the child].

The applicant here submits that the same course should be taken in this case. His argument is that the course of conduct leading to the conception of the child is clearly distinguishable from a donor who does not wish to have an involvement in the child’s life. Concerns of public policy, such as those raised by Guest J in Re: Patrick (An Application Concerning Contact) [2002] FamCA 193 at [298] that unknown sperm donors could be considered “parents” under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who has donated biological material.

Thus, the interpretation of “parent” in the Act allows each case to be determined on its particular facts.

The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law. I return to those exclusions below.

Part VII of the Act contains multiple references to the parents of the child as “either” or “both”. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i),

61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.

The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes."

There are three ways of saying who is a parent:

·By genetics;

·By birth; or

·By intention.

The approach taken by his Honour was by genetics.The basis on which Mr Groth was determined to be a parent relied on genetics.Nevertheless his Honour distinguished between known and anonymous donors.It is my view that if a genetics based approach were to be taken then the intention of the donor is irrelevant.Following the analysis to conclusion, anonymous donors to single women would be considered to be parents because each man is the “biological progenitor” of the child.

What is clear to me is that there may be many known sperm donors to single women who are now parents of those children, including being liable to pay child support, whether or not they intended that, and whether or not they or the mothers want them to be .

The annual Louis Waller lecture commemorates the significant contribution Emeritus Professor Louis Waller has made to the field of assisted reproductive treatment. This year the Victorian Assisted Reproductive Treatment Authority (VARTA) presents a conversation starter, 'Both sides of the coin', exploring the contentious issue of remuneration for donors and surrogates.

Some argue that the lack of compensation for donors and surrogates in Australia is driving Australians overseas in search of donors and surrogates. Others contend that donation and surrogacy should be purely altruistic, and that remuneration may cause more harm than good.

Two prominent legal academics, Professor Jenni Millbank and Dr Sonia Allen, will explore the arguments for the benefit of the public, health professionals and academics.

And I'm going to throw my two cents in. In my view the numbers tell the story. Jenni Millbank's figures show that about 1000 children were born in the year ended 30 June 2012 to Australian intended parents in India and Thailand alone. The link to that story is on my Facebook page: https://www.facebook.com/Stephen.Page.Lawyer.Brisbane or my Twitter feed: https://twitter.com/stephenpagelaw.That number says to me clearly that our system doesn't work, a point I made in my submissions to the Family Law Council . In my view our system needs to change because at the moment if it were working, then intended parents would not be voting with their feet.If we are so keen to protect women in developing countries, why do we not make it easier to undertake surrogacy at home? In recent discussions I had with prominent US surrogacy lawyer John Weltman, John and I estimated that about 4000 or 5000 children were born in international surrogacy arrangements each year - where they are born in one country and move to the country of their intended parents. That means that the number of children born to Australian intended parents in India and Thailand alone represents 20-25% of all children born worldwide through international surrogacy arrangements, meaning that we are ground zero- and demonstrating our failure as a nation to adequately regulate surrogacy.

Monday, 14 October 2013

A Lebanese man’s claim that he was entitled to refugee
status because he was gay has been rejected by the Federal Circuit Court. The man
sought refugee status within a month of arriving in Australia. He said that he
was blackmailed in Lebanon after a co-worker had heard him talking in a toilet
cubicle to a male friend. The court accepted that gays in Lebanon were
discriminated against and prosecuted.

The court upheld tribunal findings that the man was not homosexual; had not engaged in
intimate or sexual relationships with other men, was not overheard discussing
his relationship or that this was why he was blackmailed, was not threatened
harm of any type by his father, would not engage inhomosexualbehaviour if he returned to Lebanon and therefore did not accept that he
faced a real chance of persecution from his family, society or the authorities
because of his sexual identity if he returned, did not have a subjective fear
of harm relating to his parent's alleged desire for him to marry; and had not
had homosexualrelationships in
Australia or elsewhere.

Key reasons why the application seems to have been rejected
were the belief that the man needed to show that he lived as a gay man in
Australia in the 18 months from arrival to the Tribunal hearing: being in a
relationship, socialising “as a gay man”, seeking advice and help from gay
groups and attending gay clubs.

Judge Hartnett said:

Of course, the Tribunal finding that the Applicant failed to live in Australian as a gay man was but one of its findings as to whether the Applicant was a homosexual person. His vague account of his past sexual encounters, his failure to articulate any emotional aspect of discovering his homosexuality, and his inconsistent conduct of returning to Lebanon after his earlier visit to Australia, were others. Each went to the conclusion arrived at by the Tribunal. In its consideration of the matter, the Tribunal asked of the Applicant how it was that he lived openly as a homosexual in Australia? There was no imposition by the Tribunal of a criteria or a particular measure that the Applicant had to live up to. On a number of occasions the Tribunal attempted to elicit from the Applicant those matters which for the Applicant meant, that he lived openly as a gay man in Australia. The Tribunal did not impose its own criteria on the Applicant, but rather attempted to gain a factual context for the Applicant’s claims. The Tribunal asked of the Applicant:-

“what do you mean by that? You’ve given these broad explanations. What about your life means you were living as a gay man?”

Contrary to the Applicant’s assertions, I find there was no “relevant test” applied by the Tribunal comprising its own arbitrary criteria, but rather an eliciting of relevant information from the Applicant, and a putting to him of matters that the Tribunal had difficult in accepting. There was no illogicality attending the decision. The Tribunal made a number of factual findings on the evidence before it which lead it to a logical conclusion about the Applicant’s claims.

The case is yet another illustration that bringing a refugee case on the
basis of being gay needs to be prepared very carefully.

Wednesday, 2 October 2013

Sometimes I read an extraordinary article that is enlightening about the subject concerned. I have just read such an extraordinary article, in three chapters, written by the San Francisco Chronicle about the surrogacy experience of an American couple going to India for surrogacy, and that of the surrogate.

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.